Madras High Court
R.Masilamani vs The Managing Director on 8 August, 2023
WP.No.10247/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 08.08.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.10247/2017 & WMP.Nos.11193 to 11195/2017
R.Masilamani ... Petitioner
Versus
1.The Managing Director,
Tamil Nadu State Transport
Corporation [Salem] Limited,
No.12, Ramakrishna Road
Salem 636 007.
2.The General Manager
Tamil Nadu State Transport
Corporation [Salem] Limited
No.12, Ramakrishna Road
Salem 636 007.
3.The Branch Manager
Namakkal Town Branch
Tamil Nadu State Transport
Corporation [Salem] Limited, Namakkal. ... Respondents
Prayer : - Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of certiorarified mandamus calling for
the records from the 2nd respondent's Notice No.30-508-d6-tha.a.po.ka.2015
1
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WP.No.10247/2017
dated 15.02.2017 as well as the 1st respondent's order File No.A30-508-d6-
tha.aa.po.ka-2105-17 dated 27.03.2017, relating to recovery of Rs.72,441/-
from petitioner's salary, and quash the same and consequently direct the 3rd
respondent to grant the petitioner's salary without any recovery.
For Petitioner : Mr. P.Saravanan
For Respondents : Mr. R.Babu,Standing counsel
ORDER
(1) The writ petition has been filed in the nature of a certiorarified
mandamus seeking the records of a Notice of the 2nd respondent, the
General Manager, Tamil Nadu State Transport Corporation [Salem]
Limited, in Notice No.30-508-d6-tha.a.po.ka.2015 dated 15.02.2017
as well as the order of the 1st respondent, the Managing Director,
Tamil Nadu State Transport Corporation [Salem] Limited, in File
No.A30-508-d6-tha.aa.po.ka.2015-17 dated 27.03.2017, by which,
the recovery of a sum of Rs.72,441/- from the salary of the petitioner
was directed and to quash both the aforementioned notice and order
and to direct the 3rd respondent to grant the salary of the petitioner
without any recovery.
(2) The petitioner herein had been working as a Conductor in the
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respondents, Tamil Nadu State Transport Corporation [Salem]
Limited, from 16.02.1985. At the time of filing of the writ petition in
the year 2017, he was in service. But, subsequently, he had attained
the age of superannuation on 31.05.2017 and had retired from service.
On 05.12.2014, when he was the Conductor in a bus bearing
Registration No.TN-30-N-1174, plying between Salem and Dindigul
route, the bus was parked near the new Bus Stand, Salem. He had
kept his handbag with the ticket bundles in the seat and he claimed
that he had informed the driver about it. He then came over to Time
Keeper's office for signing in the Time Book and returned to the bus.
He found that the ticket bag was stolen by unknown persons. He
tried to trace the bag. But could not find it. He then lodged a
complaint on 08.12.2014 at Pallapatti Police Station.
CSR.No.318/2014 was registered and a Non Traceable Certificate
was also issued. A show cause notice was issued by the 2nd
respondent on 12.02.2015 as to why disciplinary action should not be
initiated against the petitioner herein. The petitioner had given his
explanation on 20.03.2015. He also sought mercy by filing a petition
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on 05.10.2015 seeking dropping of disciplinary proceedings.
However, the 2nd respondent had issued final order to recover an
amount of Rs.72,441/- from the salary of the petitioner herein. He
had then given a further petition seeking mercy to the 1st respondent
on 22.02.2017. He also filed a writ petition in WP.No.4994/2017.
This Court had directed that the petitioner should be afforded an
opportunity of personal hearing by considering the appeal. It was
stated that all further proceedings should be deferred. The writ
petition was disposed of. It is claimed that the petitioner was not
called for any personal hearing, but that the impugned order was
passed by the 1st respondent on 27.03.2017 seeking recovery of a sum
of Rs.72,441/- from the salary of the petitioner herein.
(3) The respondents have entered appearance. But have not filed a
counter affidavit.
(4) The records speak for themselves. The petitioner was the Conductor
in Bus No.TN-30-N-1174, plying between Salem and Dindigul. The
bus was parked at Salem New Bus Stand. The petitioner had left his
bag in the bus and had gone over to the Time Keeper's office. When
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he came back, he found that the bag was stolen. This was on
05.12.2014. He tried in vain to search for the bag, but could not find
it. He then lodged a complaint on 08.12.2014 before the Pallapatti
Police Station and a CSR in CSR.No.318/2014 was registered and
subsequently, a Non Traceable Certificate was also issued.
(5) A show cause notice was issued to the petitioner on 12.02.2015. The
petitioner had given an explanation. However, the 2nd respondent, the
General Manager, Tamil Nadu State Transport Corporation [Salem]
Limited, had passed orders directing recovery of a sum of Rs.72,441/-
from the salary of the petitioner herein. There is an appeal provision
which is provided before the 1st respondent/Managing Director, Tamil
Nadu State Transport Corporation [Salem] Limited. At that juncture,
after filing an appeal, the petitioner had also simultaneously filed
WP.No.4994/2017 seeking interference with the order of the 2nd
respondent. A learned Single Judge of this Court, by an order dated
28.02.2017, directed that the petitioner should be afforded with
personal hearing and thereafter, the 1st respondent can pass necessary
orders. The order of the 1st respondent, dated 27.03.2017 is also
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WP.No.10247/2017
impugned in the present writ petition.
(6) A reading of the same shows that there cannot be any inference drawn
that the petitioner was given an opportunity of personal hearing as
directed by this Court in the earlier writ petition in
WP.No.4994/2017. A grant of opportunity to explain the
circumstances under which the bag went missing is sacrosanct and is
inbuilt in the principles of natural justice around which every
disciplinary proceedings should be conducted. There cannot be an
order passed without there being an opportunity being granted to the
delinquent to explain the circumstances. Such opportunity, should
not only be an opportunity for the sake of it, but should be an
effective opportunity. There was a direction in WP.No.4994/2017,
wherein, specifically all further proceedings of the 1st respondent
were directed to be deferred and then, orders to be passed only after
giving an opportunity of personal hearing to the petitioner. However,
the 1st respondent in the impugned order, had stated that he had
perused the records and had found that the order of the 2nd respondent
was perfectly in order and therefore, had proceeded to confirm the
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same. The 1st respondent, before taking such a view while looking
into the records, should also have kept in mind the petitioner herein
and should have sought information from the petitioner about the
circumstances under which the bag was lost or stolen. In view of that
particular non-adherence to the direction of this Court and more
particularly, non-adherence to the fundamental principles of natual
justice, the order impugned naturally has to be interfered with by this
Court.
(7) Quite apart from that particular aspect, the learned counsel for the
petitioner placed reliance on three further aspects.
(8) The first is the Wage Settlement reached under Section 12[3] of the
Industrial Disputes Act, between the Union and the Management with
respect to the recovery of the value of the ticket and the
circumstances under which such recovery should not be initiated by
the Management. The circumstances under which such recovery
should not be initiated are rioting, accident, theft and dacoity. In the
instant case, the bag was lost also because of negligence, but
primarily because somebody had stolen the bag. The contribution is
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not only on the petitioner, but also because there was corresponding
theft of the bag.
(9) The 2nd aspect which the learned counsel for the petitioner pressed is
the judgment of a learned Single Judge of this Court, namely, the
Hon'ble Mr. Justice P.SATHASIVAM [as His Lordship then was]
reported in 2003 [1] LLJ 1021 [Palanisamy Vs. Management of
Rani Mangammal Transport Corporation, Dindigul]. The learned
Judge examined an issue when a conductor had lost the ticket bags
which were unused and also lost his personal belongings. In that case
also, he had given a complaint and subsequently, the respondents
therein had issued a notice charging him with negligence and
directing recovery of the amount of the value of the tickets therein.
The learned Judge had also examined the Wage Settlement which was
also relied on by the learned counsel in the instant case and thought it
fit that since it had been agreed in the Settlement in the year 1995 that
no recovery proceedings to be initiated for the loss of ticket books,
the impugned order therein was set aside. The relevant portion is as
follows:-
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''9.It is also brought to my notice that it was
agreed in the Wage Settlement in 1995 that no recovery
proceeding shall be initiated against conductors for
loss of ticket books due to riot, accident, theft etc.
Clause 29 of the 1995 Wage Settlement is extracted
hereunder:-......
No doubt, this Settlement is with effect from 1995
and in our case, the petitioner conductor, had lost the
ticket books in 1992. In the light of the above
discussion and also considering the difficulties in
carrying the ticket books by the conductors coupled
with the decision arrived at in the 1995 Settlement that
no action would be taken against the conductors for
loss of tickets due to riot, accident, theft etc., I am of
the view that the same can be applied to the case of the
petitioner. On this ground, the impugned order of the
respondent is liable to be set aside.''
(10) The third aspect on which the learned counsel for the petitioner
pressed is the judgment of another learned Single Judge of this Court
dated 04.01.2010 in WP.No.8295/2003 [N.Palanisamy Vs. The
General Manager, Tamil Nadu State Transport Corporation
[Coimbatore Div-II] Limited]. In that case also , the conductor had
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been assisting the driver to take the bus in reverse and thereafter,
went to take the bag which he had kept on the left side of the driver
dashboard. When he went to get the bag, he found it was missing.
Once again, it was an issue of theft of the bag. The learned Single
Judge placed reliance on the judgment reported in 2003 [1] LLJ
1021 [referred to supra] and also observed that consequent to the
Wage Settlement reached with the Management, there cannot be any
recovery of the value of the tickets. It was also directed that the
entire amount recovered should be refunded without interest to the
petitioner therein.
(11) I have carefully considered all these aspects.
(12) In the instant case, the learned counsel for the petitioner had produced
a copy of the Settlement reached under Section 12[3] of the Industrial
Disputes Act in the year 2007. It had been very specifically stated
that theft is one of the grounds in which there cannot be any recovery
of the value of the ticket books.
(13) In view of that particular Agreement that had been reached with the
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Union and also because of the fact that the Settlement has been
upheld by two earlier precedents of this Court and maintaining
consistency, I hold that the impugned order has to be necessarily
interfered and has to be set aside.
(14) Learned counsel for the petitioner stated that the petitioner having
retired on attaining the age of superannuation, had not been paid with
his retirement benefits. A direction is given to the respondents herein
to proceed further to determine the retirement benefits payable to the
petitioner and pass necessary proceedings within a period of sixteen
weeks from the date of receipt of a copy of this order.
(15) The writ petition stands allowed and the impugned orders of the 2nd
and 1st respondents dated 15.02.2017 and 27.03.2017 respectively
stand quashed. No costs. Consequently, connected miscellaneous
petitions are closed.
08.08.2023
AP
Internet : Yes
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WP.No.10247/2017
To
1.The Managing Director,
Tamil Nadu State Transport
Corporation [Salem] Limited,
No.12, Ramakrishna Road
Salem 636 007.
2.The General Manager
Tamil Nadu State Transport
Corporation [Salem] Limited
No.12, Ramakrishna Road
Salem 636 007.
3.The Branch Manager
Namakkal Town Branch
Tamil Nadu State Transport
Corporation [Salem] Limited, Namakkal.
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WP.No.10247/2017
C.V.KARTHIKEYAN, J.,
AP
WP.No.10247/2017
08.08.2023
https://www.mhc.tn.gov.in/judis
